Thursday, May 22 2014
• 12 p.m. (ET)

Can the Death Penalty be Reformed?

During Mark Earley’s tenure as Attorney General of Virginia, the Commonwealth executed 36 people. Today, Earley says he still supports the death penalty philosophically. But he worries that practical problems plaguing the criminal justice system result in wrongful convictions and executions of innocent people. He joins Kojo to discuss the prospects for reforming capital punishment across the United States.

The Constitution Project’s Death Penalty Committee has recommended that states move to abandon the three drug protocol in favor of a single drug. The Committee has suggested 38 additional reforms that would increase transparency and improve the integrity of the Death Penalty system, from trial through appeals to executions.

Former Virginia Attorney General Mark Earley (R) was a member of the Committee. Though he continues to believe in the death penalty, philosophically, he recently told the Guardian that “without substantial revisions– not only to lethal injection, but across the board– the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional”

A Regional Decline in the Death Penalty
The year 1999 was the high water mark for executions in the United States. Ninety-eight people were put to death around the United States that year, including 14 people in Virginia.

In 2013, 39 executions took place around the country, including one in Virginia. Twenty people have been executed in 2014.

Virginia provides an interesting case-study in the evolution of national debates about crime and punishment. In the 1990s, the Commonwealth developed a national reputation as a pro-capital punishment state. It’s elected leaders ran as “tough on crime” and its justice system moved swiftly from prosecution to appeal. But the number of executions and capital convictions has declined swiftly in recent years.

In Maryland, the death penalty was formally repealed in 2013. The District of Columbia does not use capital punishment.

Some believe the decline in the death penalty in the Commonwealth and nationwide is linked to overall decline in crime. But many advocates in Virginia credit the creation the Capital Defender Office– a branch of the Virginia Indigent Defense Commission– which provides more resources for public defenders to provide better defense to poor people accused of crimes.

Transcript

12:06:42

MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, the new geography of writing in America. Author Chad Harbach explores how artists' workshops and college programs are luring writers away from big cities like New York and Washington. But first, can the death penalty be reformed? This week, the Supreme Court halted an execution in Missouri hours before Russell Bucklew was scheduled to die by lethal injection.

12:07:25

MR. KOJO NNAMDIHis lawyers say he suffers from a rare congenital condition that would make it likely that he would suffer prolonged pain during his execution. It was the latest development in a roiling national debate about lethal injection and the way capital punishment is practiced in the United States, coming weeks after a botched lethal injection in Oklahoma prompted international outrage. Mark Earley arrives at these debates from a unique perspective. As a former Republican Attorney General of Virginia, he supports the death penalty philosophically.

12:07:57

MR. KOJO NNAMDIBut he is part of a bipartisan group trying to change the way it's practiced across the country. Mark Earley, welcome back to the show.

12:08:05

MR. MARK EARLEYThank you. It's great to be here.

12:08:06

NNAMDIYou, too, can join this conversation by calling 800-433-8850. Mark Earley is a former Virginia Republican state senator and attorney general of Virginia. He's a member of the Constitution Project's Death Penalty Commission. You can also send us email to kojo@wamu.org. Do you think the death penalty or should be reformed? Send us a tweet @kojoshow. Or go to our website, kojoshow.org, where you can ask a question, make a comment, or watch a live videostream of this broadcast.

12:08:36

NNAMDIMark Earley, during your tenure as attorney general of Virginia, the Commonweath executed 36 people. In fact, you were attorney general at the high-water mark for executions in this country. In 1998 -- 1999, that is, 98 people were put to death around the U.S., 14 of them in the Commonwealth. But you recently characterized capital punishment in America as, quoting here, "unjust, disproportionate, and very likely unconstitutional." Did you always have these concerns? How have your views about the death penalty evolved?

12:09:07

EARLEYWell, when I was attorney general and we executed 36 people in Virginia, at that point, I and others become sort of intimately involved with it. Your hands get dirty. You see the process close up. And I think for a lot of people, including me, it's very easy to make a conceptual argument in favor of the death penalty. We see some crimes that are so heinous, it's easy to say, you know, the only appropriate punishment is death. The problem becomes, as is often said, the devil's in the details.

12:09:42

EARLEYAnd in our criminal justice system, unfortunately, there are too many errors the way it is currently constructed, and too many possibilities for error. And when that happens, it's irreversible, because it's the death penalty.

12:09:56

NNAMDIOn April 29, the State of Oklahoma tried to execute Clayton Lockett, a convicted murderer, using the so-called three drug combination lethal injection. But that execution went terribly wrong. He ended up dying of a heart attack after prison authorities had trouble finding a suitable vein and after he apparently regained consciousness. That was a vivid and disturbing example of the kinds of concerns that have been raised for some time by this type of lethal injection. But it catapulted this problem into the global debate about capital punishment. What was your reaction to that story?

12:10:30

EARLEYWell, I serve on the Constitution Project's Death Penalty Reform Committee. And we issued a report on May the 7th addressing that particular issue. And basically I think it was unfortunate that Oklahoma and a number of other states shroud this process in secrecy. We don't know what chemical compounds they use. We don't know in what measure they use them. Obviously, in this case, adequately trained medical personnel were not used. And we see that problem not just in Oklahoma, but in others.

12:11:07

EARLEYSo the Constitution Project and the committee that I serve on has called basically for states to halt lethal injections unless we know the drugs that are being used and we know that there are medical personnel overseeing the process.

12:11:24

NNAMDIIndeed, the Constitution Project's Death Penalty Commission recently released a comprehensive list of 39 recommendations for improving the handling of capital cases from trial to appeal to execution protocols. One of those major recommendations you just mentioned, abandon the three-drug protocols in favor of executing prisoners with one drug. Why is that important?

12:11:49

EARLEYWell, it's important because we don't know how these drugs mix, particularly when we don't know what drugs or compounds they are. For example, in Oklahoma, the government refused to say what compounds they were using. And of course, you know, that execution went horribly wrong. So it's important that if it's going to happen, that one drug be used, we know what that drug is, and that competent medical personnel administer the procedure.

12:12:15

NNAMDIOur guest is Mark Earley. He's a former Virginia Republican state senator and attorney general of Virginia from 1998 to 2001. He is a member of the Constitution Project's Death Penalty Commission. We are asking the question, can the death penalty be reformed? What do you think? You can go to our website, kojoshow.org. The number of executions has declined significantly in Virginia since the mid '90s. We've got statistics about the regional decline in the death penalty at our website, kojoshow.org. But of course you can just call us, 800-433-8850.

12:12:52

NNAMDIWith the problems involving lethal injection, some states are considering returning to older forms of execution. In Virginia, prisoners can choose between lethal injection and the electric chair. In some states, leaders are considering bringing back firing squads. It seems like the allure of lethal injection is fading.

12:13:11

EARLEYWell, I think it's definitely presented some problems. And, you know, obviously in recent weeks we've had focus on just the methods of execution. But in the Constitution Project's Report, there were 39. And a lot of them have to do with getting to the point of execution. For example, you mentioned the decline in cases in Virginia. One of the reasons is Virginia has stepped up to the plate and really funded capital defender offices, the people that handle these cases. In many states, these lawyers are not equipped to handle death penalty cases.

12:13:47

EARLEYIt's a very highly specialized area of the law. They need to be resourced. They need to have investigators. Otherwise, they can't compete with the government's team of lawyers. So I think one of the reasons we've seen executions and death penalty cases drop in Virginia is because there are much better trained, equipped and funded attorneys who are specialists in defending those charged with capital murder than there were 10, 15 years ago, when I was attorney general.

12:14:13

NNAMDIGlad you brought that up, because I'd like to talk a little bit about the structural problems higher up the stream in the criminal justice system. A lot of defense attorneys and public defenders have long complained about the imbalance of power between prosecutors and people accused of serious crimes, who are often poor, often people of color. You said that in many cases, these trials are unfair fights. How so?

12:14:38

EARLEYWell, let me give you an example. When I was two years out of law school in 1983, I was appointed by the court in Norfolk, Va., to represent a young man who was in his early 20s who was charged with capital murder. He was charged with robbing a convenience store and shooting the owner. I was no more equipped to handle that case than a man in the moon. In retrospect, I shouldn't have taken it. But the court appointed me. And of course the Commonwealth's team had lawyers who were highly specialized in death penalty cases.

12:15:08

EARLEYSo that gives you an example, you know, and not that long ago, where someone was appointed to handle a death penalty case, who had absolutely no experience in death penalty cases. Today, in Virginia, that has changed. And now...

12:15:22

NNAMDIGot a special office handling it.

12:15:24

EARLEYA special office, it's all they do. I liken it to this, you know, if you are going to have to have heart surgery, you need a doctor. But you don't just need a doctor. You need a heart specialist. You need a heart surgeon. And if you're charged with capital murder, you don't just need a lawyer. You want a lawyer who is highly specialized and trained and experienced in handling death penalty cases. And in many cases around the country, that is still not the case. And that's one of the key recommendations of this report.

12:15:52

EARLEYIt's one of the things that's dramatically changed in Virginia over the last 10 to 15 years. And it's why I think we've seen the number of death penalty cases drop.

12:16:00

NNAMDIMany people in the public assume that if someone has been convicted by a jury or a judge and that conviction has been upheld by higher courts, then that person is guilty of the crime. So do you think it's possible that an innocent man or woman has been put to death since capital punishment was restored in 1973?

12:16:17

EARLEYWell, when you realize that just over the last several years we've had over 140-some people on death row exonerated because of DNA evidence, faulty forensic science, poor lawyers, a conviction based on eye-witness testimony which, you know, sort of casually we all thought many years ago was the best kind of testimony. Now we realize it's highly questionable. The new scientific studies show that eye-witness identification is probably one of the worst kinds of identification.

12:16:47

EARLEYSo, do I think it's possible that someone innocent has been put to death? Yes. Do we know that? No. But we do know that a lot of people on death row who were headed for death have been taken off death row and some released, because the evidence they were convicted of was found to be faulty. That's all I need to know. I don't need to know if an innocent person has been put to death.

12:17:08

EARLEYIf that is the case, if we have that many people who have been exonerated over the last few years, then we have to make these rigorous changes to the system to ensure that doesn't happen. Because when you put somebody to death who is innocent, it is as the Constitution Project's Report says, irreversible error. It can't be undone.

12:17:27

NNAMDIHere is John in Harpers Ferry, W.V. John, you're on the air. Go ahead, please.

12:17:32

JOHNHey, good morning. My question is why they can't use heroin to kill people, given the rate of overdose. And to me it might be because they want it to be a punitive experience and they want some suffering involved.

12:17:46

NNAMDISo you're saying what would be normally considered an overdose of heroin would be your recommendation?

12:17:52

JOHNWell, it's euphoric and seems to work. And I think they resist it because they want it to be punitive and some suffering.

12:18:00

NNAMDIWhat do you say, Mark Earley?

12:18:02

EARLEYWell, I don't think the lethal injection has ever been viewed as punitive in the sense that it involves suffering. In fact, the whole idea of lethal injection was to get around the prohibition of cruel and unusual punishment in the Constitution. So the theory is, when it's administered appropriately with something, for example, like Phenobarbital, it's like going to sleep. You know, there are some people who argue that it ought to be punitive. You ought to have the electric chair or firing squad or hanging. You know, I don't necessarily agree with that.

12:18:34

EARLEYBut I mean, the whole point of the death penalty is not to torture someone, but it's basically to eliminate an existing threat to society. But the, you know, in my opinion, the lethal injection has to change so that we know it's done appropriately if it's going to be a viable form of punishment.

12:18:54

NNAMDIWe've got a clip of Richard Dieter, Executive Director of the Death Penalty Information Center, explaining the origins of lethal injection in 1977. He was speaking on all things considered.

12:19:05

MR. RICHARD DIETEROklahoma was looking for something. The death penalty had been stopped for 10 years. They knew it would be controversial to bring it back and wanted to have something that was more modern, something that was more technologically advanced. And so they got advice from the state medical examiner, Dr. Jay Chapman. And he described what would happen in an operating room for patients needing surgery. There would be a series of drugs. And of course, in sufficient dosage, those drugs could cause death. And that's what Oklahoma adopted.

12:19:40

MR. RICHARD DIETERIf the death penalty was going to continue, it had to be more palatable. You know, the prospect of a -- putting someone to sleep, punishing them with death, but not in a tortuous or painful way -- that was a way of making it easier for the public to continue embracing executions.

12:20:00

NNAMDIThat was Richard Dieter, speaking of the death penalty. He's with the Death Penalty Information Center. He was speaking on All Things Considered on May 2. We move on to Roger in Oxford, Md. Roger, you're on the air. Go ahead, please.

12:20:15

ROGERYes, Kojo. Thank you very much for taking my call and hello to you, Mr. Earley. I'm a lawyer in Washington, D.C. although I am enjoying the beautiful Memorial Day Weekend maybe a little bit early out here in Oxford.

12:20:28

EARLEYGood for you.

12:20:29

ROGERI just got done representing an individual in Maryland who was given a life sentence for the murder of his girlfriend and using the Maryland Actual Innocence Statute after being in jail for 20 years was able to set him free. And he's a free man now. Probably what I would say is, for me at least personally, a kind of career case and the reason why I went to law school.

12:20:53

EARLEYRight.

12:20:55

ROGERHaving said that, it seems to me, and I definitely don't mean to draw any kind of analogy or comparison to the gay marriage issue, but there was a judge just recently, a federal judge who struck down yet another state's gay marriage law and maybe we have just become a better people. You know, we've become a society that ought just not tolerate these sort of transgressions and, you know, whatever one wants to call it.

12:21:24

ROGERI just wonder whether the botched execution in Oklahoma may be that tipping point that we needed as a society here in America to just say, you know, the risk of executing an innocent person, the potential racial implication of the death penalty, and I think there's probably little doubt that it's...

12:21:46

NNAMDIOkay. We don't have a lot of time, but I do understand your question, whether or not...

12:21:50

ROGERYeah, I do. I guess the point is, Kojo...

12:21:50

NNAMDI...this move, we could've reached a tipping point.

12:21:51

ROGER...what it really is, you know, how do we reach the tipping point at this point in time where we don't try to reform the death penalty but just reform it by getting rid of it.

12:21:58

NNAMDIMark Earley.

12:21:59

EARLEYWell, we may have and, by the way, congratulations on that case. I read about it and that was -- indeed that'll be a great mark that you've made on that gentleman's life. And I would say that, in and of itself, is a great example why the death penalty gives many people pause for concern because the exoneration of that gentleman you represented, there was a very happy picture at the end of him walking out of jail.

12:22:28

EARLEYIf that was someone who had been put to death and all of those facts had come to light later on, you couldn't raise somebody from the dead unfortunately and have them come out. So it's one of the reasons why, you know, the Constitution Project's report is called Irreversible Error. I don't know if the Oklahoma botched execution is a tipping point. I would say in my mind if there's a tipping point that's caused Americans to reconsider their position on the death penalty, it's probably the exonerations that have occurred of people on death row.

12:23:02

EARLEYBut I do think that the Oklahoma situation is highly symbolic of a system that is flawed because of human error. Any time humans administer a system you cannot eliminate the possibility of error. And when you have a death penalty system like we have today who has some built-in structural inequalities and lack of fairness then I think it's going to cause a lot of people to rethink their positions.

12:23:28

EARLEYIn the meantime, there are a lot -- I mean, it's just -- everybody, I think, knows that a lot of states are not going to get rid of the death penalty tomorrow. So in the meantime, I think we certainly can make these reforms that are going to reduce the window of opportunity for an innocent person to be put to death.

12:23:45

NNAMDIRoger, thank you very much for your call. That call, Mark Earley, raises an interesting question. The Constitution Project's Death Penalty Commission included people who are on both sides of this debate about capital punishment and it intentionally sidestepped the ethical and moral questions about whether the state should put people to death.

12:24:03

NNAMDIYou have said that you believe in capital punishment philosophically but a lot of people in religious institutions that believe that it's a moral outrage for the state to kill anybody, that execution is on its face, cruel, unusual. How should we be discussing these moral questions today in your opinion?

12:24:21

EARLEYWell, I think as a, you know, democratic society that it's good to have a continuing discussion of this. I mean, for myself this is an ongoing discussion I've had internally since, you know, I thought about the issue. And I clearly was moved in a different direction when I ended up having to participate in 36 of them and when I saw the exonerations that have occurred for people on death row. But I think a strong case can be made against the death penalty based on the moral implications. You can also make a very pragmatic one and that is, it costs taxpayers much more to put someone to death than it does to keep them in prison for life.

12:25:00

NNAMDI800-433-8850 is the number to call. Our guest is Mark Earley, former Virginia Republican State Senator and Attorney General of Virginia. He's a member of the Constitution Project's Death Penalty Commission. You can also send email to kojo@wamu.org or go to our website kojoshow.org where you can also see a live video stream of this conversation.

12:25:23

NNAMDIAfter you left public life you went on to lead a national and international Prison Fellowship Ministry, an organization founded by Chuck Colson to bring Christian teaching to prisoners. Did prison ministry change the way you think about these issues?

12:25:36

EARLEYIt did because I had the opportunity to visit literally hundreds of prisons, not only in the United States but across the world. I met a lot of men and women who were on death row. I saw a lot of people who were in prison who could've been my daughter, my son, my brother, my sister in there for oftentimes a long period of time because of minimum mandatory drug sentences.

12:25:59

EARLEYSo, you know, it caused me to become active in criminal justice reform, not just on the death penalty side but also on the phenomenon we've seen in America over the last 25 years what I call mass incarceration. We incarcerate more people today in the United States than any country in the world per capita, including China.

12:26:19

NNAMDIWhen we are talking about people who have been convicted of truly heinous crimes, the alternative to the death penalty is often life without possibility of parole. But in many ways that's very cruel and problematic on a moral level as well, isn't it?

12:26:35

EARLEYWell, it's certainly not as problematic as putting someone to death who may be innocent. Or if you take the position that we shouldn't take human life at all, it's certainly not the same. I don't think life without parole is morally problematic for someone who has done a crime that's particularly heinous and that should never be released upon society again. And there are some people like that in prison, fewer than we think. But there are people like that who even the prison population must be protected from.

12:27:09

EARLEYIt's a sad situation but it's true and they can be held safely and humanly for life. Perhaps they have the opportunity to change. If so, great but it doesn't mean they should be released back into society.

12:27:21

12:27:26

EMADEOYes. Thank you, Kojo, and thank you for bringing this topic up today. I had somebody who recently changed my point of view on capital punishment. I just wanted to share how I came about that. And it isn't a moral issue because you can never convince someone that their morals are incorrect. And it isn't a pragmatic view of it. It's simply that we live in a free country where our rights are protected and every day we talk about our freedom of speech, our right to bear arms.

12:27:56

EMADEOAnd yet we give the same government that we expect to give us all these freedoms, we give them a choice of whether or not we get to live. We put someone's life in the hands of our government when we aren't even willing to let the government tell us we can and can't say. So I just wanted to know what -- also I have a question, what public components are really preventing capital punishment from going away?

12:28:23

NNAMDIMark Earley.

12:28:23

EARLEYYeah, I think that's a great point. I'll just share from my own personal experience. I mean, one of the things it's caused me to change my attitude toward death penalty is I'm generally a small government conservative who believes that in many cases the government is not designed to do something correctly. You know, give them an opportunity and they'll botch it up.

12:28:44

EARLEYSo, you know, it's interesting to me how a lot of conservatives who've been so strongly supportive of the death penalty, which is, as you say, giving the government this power to take a human life, on the other hand are very reluctant to give the government power to do much less, you know, significant things. So I think if you're a small government conservative, it can lead you very quickly, not on a moral basis or even a criminal justice basis but simply on your faith in government to do things right, to believe that they shouldn't have this power to take someone's life.

12:29:21

NNAMDIWhat about prosecutorial misconduct? The report notes that prosecutors are required to share exculpatory evidence with defense teams. But many believe that the incentives to do so are weak. We got an email from Angela who says, "Please ask Mr. Earley about the role of Brady violations and other forms of prosecutorial misconduct and perpetuating wrongful convictions." That's Angela Davis from the Washington College of Law. Go ahead, please.

12:29:45

EARLEYRight. Well, that’s a great question. And, you know, there was just recently an article in the Washington Post about an individual who'd been released from prison. When the new prosecutor took a look at a case, it was 20 years old and they realized there had been severe prosecutorial misconduct early in the case. And this gentleman, you know, had -- basically was walked -- let free 20 years later, which is sad that he lost 20 years of his life based on prosecutorial misconduct.

12:30:13

EARLEYIt does happen. There's misconduct among all kinds of lawyers, defense attorneys, prosecutors. But when there's prosecutorial misconduct or withholding of exculpatory information, that's information that could lead potentially to prove the innocence of a defendant. When that kind of information is withheld against the order of a court and against the requirement of the Supreme Court that it be disclosed, it can be incredibly, you know, devastating and can result in wrongful conviction.

12:30:45

EARLEYSo, you know, that's something that the Constitution Project's report Irreversible Error also looked at. And that is increased training of prosecutors on their responsibilities under the Brady case, which is to make known exculpatory evidence, not only within their possession personally but within the possession of government entities that are involved in the case.

12:31:09

NNAMDIMark Earley, former Virginia Republican State Senator and Attorney General. He's a member of the Constitution Project's Death Penalty Commission. Thank you so much for joining us.

12:31:17

EARLEYHey, my pleasure. Thank you so much.

12:31:19

NNAMDIWe're going to take a short break. When we come back, the new geography of writing in America. Author Chad Harbach explores how artist workshops and college programs are luring writers away from big cities like New York and Washington. I'm Kojo Nnamdi.

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